Angelo v. Armstrong World Industries, Inc.

• Decision Date: 29 November 1993
• Docket Number: No. 92-5104,92-5104
• Citation: 11 F.3d 957
• Parties: Nicholas J. ANGELO, and Rayma L. Angelo, Plaintiffs-Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC.; GAF Corporation; the Keene Corporation; Owens-Illinois, Inc.; Owens-Corning Fiberglas Corporation; Flexitallic Gasket Company, Inc.; John Crane; Houdaille, Inc., and Anchor Packing Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 957

11 F.3d 957

27 Fed.R.Serv.3d 1438

Nicholas J. ANGELO, and Rayma L. Angelo, Plaintiffs-Appellants, v.ARMSTRONG WORLD INDUSTRIES, INC.; GAF Corporation; the Keene Corporation; Owens-Illinois, Inc.; Owens-Corning Fiberglas Corporation; Flexitallic Gasket Company, Inc.John Crane; Houdaille, Inc., and Anchor Packing CompanyDefendants-Appellees.

No. 92-5104.

United States Court of Appeals Tenth Circuit.

Nov. 29, 1993.

Mark H. Iola (David L. Weatherford and Randall L. Iola with him on the briefs), Ungerman & Iola, Tulsa, OK, for plaintiffs-appellants.

Margaret M. Chaplinsky, Brown, Winick, Graves, Donnelly, Baskerville and Schoenebaum, Des Moines, IA, and Frances E. Patton, Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, OK (Scott M. Rhodes with them on the briefs), for defendants-appellees.

Before SEYMOUR, MOORE and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs/appellantsNicholas J. Angelo and Rayma L. Angelo appeal from a final order denying their motion for a new trial entered by the United States District Court for the Northern District of Oklahoma in their strict products liability and negligence lawsuit.¹Appellants' App.at 84.The Angelos alleged in their complaint that Nicholas Angelo, a seventy-four-year-old maintenance supervisor and machinist, was exposed to products containing asbestos on the job sites where he worked.They complained that the appellees negligently produced, sold, or otherwise placed the asbestos-containing products into the stream of commerce.They also alleged that the appellees were strictly liable because the products were unreasonably dangerous to those exposed to them, and because the appellees failed to warn of the health hazards associated with the products.Id. at 5-7;Appellants' Br.at 3.

The Angelos further complained that as a result of Nicholas Angelo's exposure to the asbestos in the products, he contracted pleural malignant mesothelioma.They also claimed that Rayma Angelo lost Nicholas Angelo's consortium because of his illness.

The Angelos' case was subject to special trial management protocols in effect for asbestos personal injury cases brought in the Northern District of Oklahoma.One of these protocols, contained in the district court's Revised Standing Order of June 16, 1989, required that all parties exchange with their opponents a "medical narrative" summarizing the medical conclusions of expert witnesses.Trial testimony would be limited to the contents of the medical narratives.Appellants' App.at 285, 287-88.The district court also ordered that asbestos personal injury trials be tried in a reverse bifurcated format--that is, damages, causation, and presence of disease would be tried in a first phase, then liability and punitive damages would be tried in a second phase.Id. at 302-03.

A jury found for the appellees in phase one, and the district court entered an order and judgment in their favor.Id. at 81.The district court denied the Angelos' subsequent motion for a new trial, from which the Angelos timely appealed.Id. at 82-84.

On appeal the Angelos contend that: (1)the district court erroneously admitted testimony about Quinidine-induced lupus on redirect examination of appellees' expert witness Dr. Dala Jarolim; (2) a new trial is required because the appellees' counsel was guilty of misconduct by intentionally withholding Dr. Jarolim's testimony about Quinidine-induced lupus until redirect examination; (3) excluding the deposition testimony of one of the Angelos' expert witnesses, Dr. Steven Gawey, was improper and extremely prejudicial; (4)the district court abused its discretion by using the reverse bifurcation format because this format was highly prejudicial to the Angelos and the issues of liability and damages were inseparable; and (5)the district court abused its discretion by failing to reverse the jury's verdict because the jury instructions were erroneous and prejudicial.

We affirm.

I.Dr. Jarolim's Testimony

The trial was governed by a standing order that provided: "No medical expert shall be allowed to testify unless a narrative report has been previously provided pursuant to the requirements of this order.No medical expert shall be permitted to testify on direct examination as to matters not contained in his or her narrative report....No witness shall be permitted to testify to matters beyond the scope of the medical narrative report, detailed summary, and/or designated deposition testimony."Id. at 288.

Before trial, Dr. Dala Jarolim, an expert witness for appellees, properly prepared a medical narrative report.Subsequently, in a deposition conducted by the Angelos, Dr. Jarolim expressed her opinion that Nicholas Angelo suffered from Procan-induced lupus.She had not mentioned this opinion in her medical narrative report.In a pretrial conference where concerns about changes in opinions were discussed, the supervising magistrate judge stated:

At this point in time there is certainly no surprise as to what these doctors are going to say and I would certainly think that none of these doctors at this point are going to change any of their opinions again prior to trial.In fact, I can guarantee none of them are going to change any of their opinions, subsequent to this pretrial conference.

Id. at 72.

At trial, Dr. Jarolim testified on direct examination that she believed that Nicholas Angelo was "suffering from a form of drug-induced lupus ... from the administration of one of his heart medicines ..., Procainamide, Procan S.R."Id. at 146.On cross-examination the Angelos' attorney challenged this opinion by questioning why Nicholas's health had not improved more quickly and significantly when he stopped taking Procan.On redirect examination, Dr. Jarolim testified that when Nicholas Angelo was taken off Procan, he began taking a different drug, Quinidine, which has a lupus-like association similar to that of Procan.Id. at 179-80.At this point the Angelos objected that Dr. Jarolim's testimony was "beyond the scope."Id.The district court overruled the objection.

The Angelos argue that the district court erred by overruling their objection to Dr. Jarolim's testimony about Quinidine-induced lupus.They claim that her testimony surprised them and "gutted" their case.

We review evidentiary challenges differently depending on whether the challenge was properly raised by objection at trial.We will uphold the district court's evidentiary rulings over objections properly made at trial unless the court abused its discretion, McEwen v. City of Norman, 926 F.2d 1539, 1544(10th Cir.1991), and caused "manifest injustice to the parties."Comcoa, Inc. v. NEC Tels., Inc., 931 F.2d 655, 663(10th Cir.1991);accordMason v. Texaco, Inc., 948 F.2d 1546, 1555(10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1941, 118 L.Ed.2d 547(1992).On the other hand, we will uphold the district court's rulings against objections not made at trial absent plain error.Fed.R.Evid. 103(d);McEwen, 926 F.2d at 1545.Furthermore, "a specific overruled objection protects the record to the extent of the ground specified, but does not avail the party of other grounds that could have been raised but were not."Smith v. Atlantic Richfield Co., 814 F.2d 1481, 1486(10th Cir.1987).We therefore must first determine what grounds were raised by the Angelos' objection.

Objecting that testimony on redirect examination was "beyond the scope" would typically mean that the testimony addressed issues not raised in cross-examination.See, e.g., United States v. Hodges, 480 F.2d 229, 233(10th Cir.1973)(explaining that redirect examination may cover areas which were the subject of cross-examination).We disagree that the Angelos' objection meant that the testimony violated the trial protocols and the magistrate judge's statement.Even if the Angelos' attorney meant to make such an objection, he did not explain the objection any further to make it clear that he meant something other than what the judge would reasonably take it to mean.²Nor does the record indicate that the district court understood the objection to have such an uncommon meaning.The objecting party must make its objection clear; the trial judge need not imagine all the possible grounds for an objection.Cf.United States v. Willie, 941 F.2d 1384, 1394(10th Cir.1991)(explaining that where there are both permissible and impermissible purposes for evidence, the trial judge need not "seek after the purpose of the evidence or ... imagine some admissible purpose for it"), cert. denied, --- U.S. ----, 112 S.Ct. 1200, 117 L.Ed.2d 440(1992);Comcoa, Inc., 931 F.2d at 660(requiring the grounds for objections to jury instructions to be obvious, plain, or unmistakable).We therefore review for abuse of discretion only the ruling that the trial judge apparently made: that Dr. Jarolim's testimony did not exceed the scope of cross-examination.Because the Angelos' objection did not specify that the testimony violated the standing order or the magistrate judge's statement, we review for plain error the district court's failure to exclude the testimony on those grounds.

We conclude that the trial judge did not abuse his discretion by ruling that the testimony was within the scope of the cross-examination.SeeHodges, 480 F.2d at 233("The scope of redirect examination is committed to the sound discretion of the trial court, and will be reversed only on a showing of abuse of that discretion.").During direct examination, Dr. Jarolim gave her opinion that Nicholas's symptoms were caused by Procan-induced lupus.Appellants' App.at 145.On cross-examination, the Angelos' attorney tried to discredit this opinion by questioning why Nicholas had not improved more quickly and significantly after he stopped taking Procan.Id. at 162-64, 178.Dr. Jarolim's challenged testimony on redirect examination was in response to this questioning.She...